The Baha'is of Egypt have been subjected to persecution and systematic oppression. While their quest for equality has been finally heard by many of their fellow citizens, there remain challenges and obstacles to the implementation of laws intended to grant them their full civil rights and equal opportunity in their society. With the emergence of the new Egypt, they seek to be given the opportunity to actively engage in rebuilding their nation.

Friday, February 23, 2007

The Cairo Institute for Human Rights Studies has recently published an English translation of the Arabic version of a Position Paper on The Baha'i Case in relation to citizenship and freedom of belief authored by Ahmed Zaki Osman, a member of the Institute. The paper is entitled "The Baha'i Case as an Ordeal of Citizenship and Freedom of Belief in Egypt" and initially published on 16 January 2007.

The full unedited text is posted below and the link for the English version of the Position Paper can be accessed here....

The Baha'i Case as an Ordeal of Citizenship and Freedom of Belief in Egypt (Position Paper)16/1/2007

On November 28th 2002, the United Nations Human Rights Committee (HRC) presented its Concluding observations on the third and fourth reports submitted by the government of the Arab Republic of Egypt. The HRC pointed out to subjects of concern including practices in breach of Article (18) of the International Covenant on Civil and Political Rights (ICCPR), concerning the right to freedom of thought, conscience and religion and of observing Baha'i rituals . The reply drafted by the Egyptian government (which was incorporated within the third and fourth reports) was obsessed with dealing with the political embarrassment caused by the Committee's observations on the second report of the Egyptian government. Furthermore, the Egyptian government is fairly hypersensitive about making any pledges that would close the door before arbitrary practices by the Executive Estate with regard to the general situation of freedom of belief in Egypt. Nevertheless, it is noteworthy that in its official response, the Egyptian government alleged that it has never undermined the Baha'is freedom of belief, that it hasn't restricted their freedom to embrace this faith, and that what happened was an attempt to implement provisions of Law No 263 of 1960 on disbanding Baha'i congregations because they were breaching public order.

This suspension was given a legal cloak with the "public order" justification, which came on top of government justifications geared toward restricting the freedom of members of the Baha'i faith, emerging quite strongly in the recent couple of years, with vehement public debate around the Baha'i faith and the limits of practices related to freedom of belief. This debate overlapped with the situation of religious freedom of other confessions in Egypt. The state of vehemence came in the aftermath of a lawsuit reviewed by Egyptian law courts, which was one among many frequent cases focusing on the regulation of legal procedures of members of the Baha'i faith--rather than their freedom to observe their rituals--concerning the statement of "Baha'i or other religions" on official documents (passports, birth certificates, new computerized identity cards). In this connection, the court ruling in lawsuit No 24044 of the year 1985 entitled members of the Baha'i faith to state their religious belief on official documents. The legal reasoning of this court ruling was clearly congruent with another ruling made by the Supreme Administrative Court in 1983 in a similar case as its counterpart presented before the court of law in 2004.

The 1983 lawsuit betrays the distinguishing features of legal and jurisprudential frameworks affecting the situation of Baha'is in Egypt. In sum, this lawsuit concerned the case of a Baha'i university student who was denied access to a computerized personal ID card by the Alexandria civil registration office, which culminated with the suspension of this student from his faculty in his senior year (because he could not defer military conscription as he was not allowed to renew his exemption from military service without the ID card). Following the suspension decision, the student's guardian filed a lawsuit before the Administrative court on December 8th 1976, requesting the invalidation of the decision of the Montazah district civil registration office not to issue a personal identity card to his son.

Three years after the legal action, the Administrative Court of Alexandria decided on May 16th 1979 (lawsuit No 84 of the year 31) to dismiss the case. In its reasoning for dismissal, the court mentioned that whereas Muslim Shari'a principles are the fundamental source of legislation, other constitutional provisions pertaining to freedom of belief, non-discrimination on the basis of religion or belief should be regarded "insofar as Islam permits it and in such a way as not to contravene its precepts or contradict its provisions". However, the court did not specify the limits that Islam permits. Furthermore, the court went beyond its original role of "settling disputes" to practice another more general function, namely putting the belief itself to trial (a situation that might be recurrent later in the form of prosecution of members of either another divine religion or any other faith or confession). For instance, the reasoning mentioned that "Baha'ism contradicts divine religions". Accordingly, the court approved the decision of the civil registration office, which refrained from issuing the ID card and deemed it as "a correct and sound decision", and that the decision to suspend the student from his faculty "is based on a justifiable reason, and therefore the request to invalidate the decision should be dismissed".

However, four years after this unusual ruling, the decision of the Supreme Administrative Court on January 29th 1983 (i.e. almost seven full years after the incident of refusal of the civil registration office) in the appeal to the decision of the lower administrative court fell in the paradox of either permitting full practice of the right on the one hand or unjustifiably restricting this right on the other. Hence, the Supreme Administrative Court dismissed the "dissonant" decision of the lower administrative court of Alexandria. One of the "exceptional" grounds on which the ruling was based was that the Baha'i congregations that were dissolved as per Law No 263 of 1960 were administrative bodies, which are totally distinguished from "Baha'i activities and practices", especially that the legislator did not deal with the theology itself, as its "sanctity is ensured". Furthermore, the Court emphasized that "the Abode of Islam encompassed non-Muslims of different faiths and confessions, where they lived as full citizens on equal footing with other people without being coerced to convert to another religion or modify their beliefs". However, and unfortunately, the Court linked this evenhanded interpretation with a stipulation that the rites and rituals publicly practiced by other religions should be approved by "the government of Islam", and restricted the right to publicly practice such rites to "the customs and traditions of the People of the Book (i.e. Jews and Christians) known to Muslims in Egypt". The Court undertook a very serious course when it stipulated that the Baha'i faith should necessarily be identified on official documents, not because this is their right but "to identify the affiliation of its beholder and that he/she would not be allowed any legal position not condoned to this faith by the Muslim community".

Despite the fact that this ruling did not fulfill the needs and claims of individuals regarding maximum freedom to practice religious rituals, and that it was discriminatory on the basis of religion, it represented an important turning point in the legal debate over the situation of the Baha'is in Egypt. Actually, this judgment was used as a ground for bringing legal action No 24044 of the year 1985, whereas the Administrative Court pronounced on April 4th 2006 its ruling that the Baha'i community was entitled to lawfully declare their faith on official documents.

The 4th of April ruling was distinguished from other rulings because it stirred up severely violent reactions either in official or party newspapers. However, the most important opposing reaction came nearly a month after the court ruling was pronounced, specifically on the third of May, when the People's Assembly Speaker decided to open the discussion on a subject that was not on the agenda, namely the court ruling pronounced by the administrative court on the 4th of April 2006, that the Civil Registry (an affiliated body of the Ministry of Interior) should lawfully acknowledge the Baha'i faith in official documents. The People's Assembly reviewed petitions filed by seven MP's, namely Ahmed Shoubeir, Sobhi Saleh, Akram Al Shaer, Ali Laban, Al Sayed Askar, Zakaria Younes and Mohamed Amer Helmy. Those petitions were presented to the Minister of Religious Endowments, i.e. a minister having no relation with or jurisdiction over the case (Civil Registration is the competent authority, which is subordinate to the administrative authority of the Ministry of Interior).

The problem lies not only in the wrong choice of the minister in charge of the case, but the more serious situation is also that the petitioners relied quite unusually on very fragile and ambiguous information. Some of them was merely satisfied with instigating the government against Baha'is, while others like Sobhi Moussa called upon "government, represented in the Ministry of Endowments, Al-Azhar and competent ministries to challenge the ruling and intervene in the lawsuit with information proving that the Baha'is are atheists, apostates, and that such judgments were reached by consensus of the Muslim community (umma). Furthermore, This group should be incriminated or legislation should be enacted to criminalize the thoughts and rituals of the Baha'is so as not to open the door for the corruption of the doctrines, beliefs, and ethics of people, especially that this devious and perverse group embraces principles that violate the general morals, ethics, doctrines and thoughts and thus could demolish public order and ethics in society". In other words, this MP reduced the role of state institutions, which are supposed to be neutral, to putting individual beliefs to trial. This stringent attitude of the People's Assembly created a severely congested situation regarding the role of state bodies in restricting individual freedoms, which further underpinned the situation of the Ministry of Interior in its appeal against the ruling of the Administrative Court.

Then came The Day: 16th of December 2006, a day which carried with it a "shocking" ruling of the Supreme Administrative Court, presided by Counselor Al Sayed Noufal, Head of State Council. The shock stemmed from the fact that the court ruling contrasted Baha'i teachings with Islamic precepts. The reasoning ridiculed in large part the Baha'i faith, apart from the corrupt logical inferences from some laws and rulings of judiciary institutions, for instance the State Supreme Court ruling of March 1st 1975 . Finally, the arguments indicated that the interpretation of Article 46 of the 1971 Constitution on the freedom to practice religious rites applies only to the three divine religions, which is totally at odds with the case at hand. The latter was not totally concerned with the freedom to practice religious rites but was seeking an outlet to the predicament of the Egyptian Ministry of Interior's denial to some members of the Baha'i faith the right to issue official documents. Furthermore, the court adopted a very peculiar approach, legally speaking, when it interpreted provisions related to freedom of belief in Egyptian successive constitutions (starting from the 1923 Constitution) through the preparatory works of the constitutions, so as to refer solely to the three divine religions. However, this interpretation is not based on historical evidence especially that Egyptian legislators have never attempted to produce statistics on the number of religions and faiths permitted within the country. The Parliament (House of Representatives and the Senate) were thus urged to enact Law No 15 of the year 1927 on the King's authority regarding religious institutions and on permissible religious faiths . This law meant quite evidently that "permissible religions" and the regulatory matters related thereto were procedural affairs legally subject to the powers of the king and which the Prime Minister could exercise (according to Articles 1 and 3 of Law No 15 of 1927).

The Supreme Administrative Court Ruling: A Gate to Further Legal Controversies

The most recent court ruling represents a marked threat to civil pillars of the Egyptian state, and places several restrictions on the exercise of public freedoms, which would later culminate with a crisis (not exclusively at the level of efficiency and performance of state institutions) but rather a crisis in the management of public procedures within the state. For instance, according to the December 2006 ruling of the Supreme Administrative Court, the State does not acknowledge except three religions, which contravenes both aggregately and in detail the legal structure regulating the acquisition of Egyptian nationality, especially that the first law regulating this matter was enacted in the second decade of the twentieth century , and was semi-civil. In other words, the requirement of espousing one of the three divine religions was not set as a condition for acquiring the Egyptian nationality, which is the legal tradition adopted by the law regulating the Egyptian nationality currently in force (Law No 26 of the year 1975), Article (11). This means that any individual espousing any faith or religion (divine or not) and fulfilling the requirements of Article 11 of Law No 26/1975 is entitled to the Egyptian nationality, and thus is obliged as per provisions of Law No 143 of the year 1994, to issue several official documents where he/she would state his/her faith or religion. Herein lies the impasse facing state institutions, since according to the Supreme Administrative Court ruling (of 2006), registering any "other" religion (other than the three divine religions) is a breach of the law. In case the civil registration office refuses to register "other" religions, the outcome would be an evident contravention of Article (40) of the 1971 Constitution, which provides that "All citizens are equal before the law. They have equal public rights and duties without discrimination due to sex, ethnic origin, language, religion or creed".

How to Transcend the Debate on the Structure of Beliefs:

In the crisis of the Baha'is, the Three Estates agreed that Baha'ism was not Islam, a matter that is beyond the scope of the issue itself and represents a departure from the role of the civil state, namely to "legislate" in support of creating structures of a religious state, founded on "fatwa" (legal religious opinion). Most of the fatwa related to Baha'is focus on one premise, namely that the Baha'i faith is a defection from Islam (for instance, the fatwa delivered by the Egyptian Mufti Sheikh Abdul Majeed Selim in 1939 and that of Sheikh Jad Al Haq Ali Jad Al Haq in 1981) . This state of affairs raises a serious problem regarding the role of the fatwa institution in influencing the legal rule-making, approval of legal rules and litigation pertaining thereto, especially that such legal or advisory opinion denies the concept of citizenship and the civil pillars of the Egyptian State. On the other hand, the pattern of political exploitation and manipulation of the fatwa for political ends and for justifying state practices against the Baha'is is severely mounting. This in fact gives more preponderance to political and social rhetoric based on putting beliefs to trial. Nevertheless, it is important to pinpoint the political role played by some social, political and media authorities, which was quite uncommon, through their action geared toward alleviating the intensity of religious polarization over the issue. Even though the general atmosphere was quite congested, with the intensive emergence of religious-related crises (hijab or head veil, and Copts), independent newspapers' concern with the Baha'i case was a new opportunity for a reading of this issue from other perspectives, thus focusing on rights rather than the nature of the creed.

Egyptian bloggers were also concerned with this phenomenon, which was an opportunity to engage in a political debate on various blogs, which became an open panel for exchanging opinions and attitudes. Bloggers attempted to create an unofficial network of defenders of the right of the Baha'is to lawfully register their religion on official documents (such as the symbolic demonstration on the day of the pronunciation of the court ruling). Finally, the interest exhibited by some human rights organizations, such as the Egyptian Initiative for Personal Rights EIPR), paved the way for bringing pressure to bear, though in a different pattern, and deal with the issue to project a different perspective on the freedom of belief , a perspective that invalidates other security or jurisprudential justifications. These organizations offered their legal expertise and focused on the core obligations of the Egyptian State ensuing from international human rights conventions that Egypt is a Party thereto.

To conclude, it is noteworthy that the Supreme Administrative Court ruling gave rise to a new dilemma for the Egyptian government: a group of Egyptian citizens rendered faithless and stateless, denied the right to possess official documents. This will naturally open the door incessantly for recurrent issues to appear on the surface, let alone the potential role that international and regional mechanisms might play to exert pressure on the Egyptian government to thwart its discriminatory practices against freedom of religion and of belief.

The author does a thorough job of recounting the plight of the Baha'is and the absurdity of the judicial process and outcome related to the civil rights of the Baha'is in Egypt. He outlines how justice is administered with malice towards a group of loyal citizens solely on the basis of their beliefs.

Several comments by other contributors analyzed the absurdity of the process of administering justice (rather, injustice) to the Baha'is in Egypt: the intervention by the People's Assembly through the wrong ministry in the judicial process, the Administrative Supreme Court addressing the theology of the Baha'i Faith rather than the civil rights of the Baha'is, the creative liberty this court took in fabricating what its justices presented as facts to justify their biases and prejudices, the spinning of such biases in vague terms such as "public order", the neglect of protections of all citizens under the Constitution, the neglect of Egypt's international obligations as a signatory to the UN Declaration on human rights, the neglect of the compassionate spirit of Islam and other "heavenly religions", and the predetermined outcome by the court as evidenced by the words of the supreme justice and the minister of religious endowments in which they incite hatred and violence against the peaceful Baha'i minority!

The author of the Position Paper sums up the effect of this ruling: "The ruling gave rise to a new dilemma for the Egyptian government: a group of Egyptian citizens rendered faithless and stateless, denied the right to possess official documents."

Can any government disavow its constitutional and international obligations, dishonor the independence of its judicial system, incite hatred against a group of its devoted citizens, strip an entire group of citizens of their citizenship and civil rights, and deprive them of basic livelihood? Unfortunately the answer at the present time is yes unless the world public opinion and the civilized world can bear on this issue.

When His Holiness Moses proclaimed His Faith, many powerful people opposed Him. Though not many people accepted Him then, His Words prevailed.

When His Holiness Jesus proclaimed His Mission and Teachings, many powerful people opposed Him. His disciples were few and were met with stiff opposition. His Words prevailed.

When the Prophet Mohamed, PBUH, proclaimed the Faith of Islam, He was opposed by many who schemed against Him and His followers. And His Words and Teachings as inscribed in the Holy Koran prevailed.

When His Holiness the Bab came, He was martyred along with many of his follwwers. And His Words prevailed. And when His Holiness Baha'u'llah proclaimed that He is the Promised of All Ages, He became a prisoner and an exile, and many of His followers were opposed and persecuted. His Words and Teachings for an ever-advancing civilization, the oneness of God, the oneness of God's Faith and His Messengers, and the oneness of humankind are shaping today's world even if those who oppose His Teachings and persecute His followers deny the source of divine inspiration. They deny the same truth their forefathers first denied before they saw the light of truth and glory. This is the day for which the prophets of past have yearned. And so it will be, Baha'u'llah's sacred and inspired words will prevail.

There is a core issue regarding the qualifications of State Parties to HRC Treaties and Covenants. In its third and fourth report to the HRC, May 2001 (prepared by Justice Sana Sayyid Khalil- President of the Courts of Appeal, and the Director of the General Department for Human Rights Affairs- Office of the Minister of Justice), regarding the (ICCPR) International Covenant on Civil and Political Rights, it is stated that:

 Egypt acceded to the ICCPR pursuant to Presidential Decree No. 537 of 1981. Egypt expressed general reservation to the effect that account should be taken of the need to ensure that the Covenant was not incompatible with the provisions of the Islamic Shariah.

This, in contractual terms, is what would constitute a “Condition(s) of Particular Application”, or a “Particular Condition(s)”. If applied to practices common to the business world, a Covenant (contract) would not be deemed comprehensive or up to standard unless these exceptions or Particular Conditions are clearly defined (noting additions, deletions or modifications to the “General Conditions”) and agreed upon by all parties.

The consequence of this omission is that the definitions of Shariah law - in addition to the lack of identifying the (official) party responsible for its interpretation – are in conflict with the requisites of the ICCPR. If the terms of Shariah law were noted, as presently being applied (incoherently and from multi-party sources), the qualifications of membership to the HRC and the ICCPR would not be met.

The desire to present a faithful alignment of the Egyptian Constitution with those provisions set out by the HRC has been a history of wordplay by which to conceal obvious and willful violations.

Further examples in the report (referenced from the Egyptian Constitution):

 The Civil Code (Act No.131 of 1948): 586 (a) Article 30 stipulates that births and deaths must be recorded in the official registers maintained for that purpose…

 Article 27: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language.

In the same report, in response to observations that the Baha’i community is deprived of its rights, it is stated:

 …the freedom to perform the religious rites of any religion, including recognized religions, is subject to such limitations as are necessary to protect public order and morals, as is recognized in article 18, para. 3, of the Covenant.

 …the contested Decree Law did not contest the freedom of the Baha’i Faith or detract from it in any way, but merely challenged the Baha’i forums in which members gathered and engaged in activities and performed ceremonies intended to preach their beliefs in a manner inconsistent with public order…From a strictly legal point of view, Baha'i forums are private associations that are subject to the law.

This is not a question of how to deal with a particular violation; it is confronting an unqualified associate to the HRC that has been in active and escalating violation for over 40 years of membership. If Shariah law or any other constitutional provisions are not in accord with the standards of the HRC, then the practice of international law has met its biggest challenge in this region.

r.a.,However they ignored--or misrepresented--what the Egyptian constitution actually states. It clearly states in accordance with "the Principles of Shariah law" and not "Shariah law," indicating the intended flexibility of that particular article which, unfortunately, has been ignored.

On the other hand, regardless of what is written in the Egyptian constitution or on other official declarations, it has been clear that actions have not necessarily been consistent with words or declarations. This is where the problem lies: a constant and unrelenting state of oblivion!

Definitely. There are crimes that are so clearly base and inherently primitive, that one really wonders at the need, at this period of human development, to detail their offense in any covenant or decree. The absurdity of attempting to justify the denial of civil record of a person or group would place this not much lower in rank with such primordial practices as cannibalism. That the perpetrators are justifying their acts as due religious right while attempting to prove compliance with modern world standards is a doubly injudicious act. This is proof that when left to its ways, human society can recede into limitless darkness.

According to what I understand from reading this source .. page 80 or so, the present constitution says nothing about 'Public Order', but rather this crutch is borrowed from previous constitutions with the excuse that its omission from the present constitution must be because it's a given, ... a basic fact, in no need for reiteration.

The other thing that came to my attention from reading the same source, is that no where in any constitution, it is mentioned that there are only three 'heavenly religions, but rather such mention was only based on some preparatory work for articles 12 and 13 for the 1923 version of the Constitution.

The recent rulings conflict with the provisions set out in the Egyptian Constitution. The only references in the Constitution that have been applied, or rather, misapplied to the issue of the Baha’i community are that of “Public Order” and “Public Security”. The position of officially recognizing “three heavenly religions” finds its source in the interpretation of Shariah doctrine. While not mentioned in the Constitution, Egyptian judicators (conveniently) apply Shariah law as supplement to the Constitution, despite obvious practices that indicate that it supersedes all other laws and decrees. It is likewise evident that Shariah law is not a fixed code, that edicts can be pronounced on a case-by-case basis, and that its definitions are largely unresolved and open to interpretation even by those institutions responsible for providing clarifications.

The only reference given as to “Public Order” was an ill-defined justification that Baha’is engage in activities where the Faith is discussed and taught to others, thereby posing a threat where people of other religions may convert. This is obviously an issue of freedom of speech and expression. It is also hypocritical if one considers that the Egyptian public is subjected to the call for prayer five times a day over loudspeakers. The essential purpose of international human rights conventions is to guard against such limitations imposed by inadequate or oppressive systems, whether political, religious or any other. In Egypt, the particular pretext for carrying out injustice is religious law, rather than noncompliance to its Constitution, which essentially mirrors democratic and just systems of governance.

1) In my opinion, the connection made by the Egyptian authorities and extremists regarding "public order" and the Baha’is is nothing but a scam. Baha'is, if anything, have been the most sincere preservers of "public order" in Egypt and everywhere else. If you look carefully at all the attacks on the Baha'is in Egypt when "public order" is mentioned, they never state what this disturbance to "public order" is--it is just a "dark box" and a "catch phrase" used to raise suspicion and foster enmity towards the Baha’is.

2) I have never seen anywhere in the Qur'an that it only recognizes three religion. Have you?

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“All the Prophets of God,” asserts Bahá’u’lláh in the Kitáb-i-Íqán, “abide in the same tabernacle, soar in the same heaven, are seated upon the same throne, utter the same speech, and proclaim the same Faith.” From the “beginning that hath no beginning,” these Exponents of the Unity of God and Channels of His incessant utterance have shed the light of the invisible Beauty upon mankind, and will continue, to the “end that hath no end,” to vouchsafe fresh revelations of His might and additional experiences of His inconceivable glory. To contend that any particular religion is final, that “all Revelation is ended, that the portals of Divine mercy are closed, that from the daysprings of eternal holiness no sun shall rise again, that the ocean of everlasting bounty is forever stilled, and that out of the Tabernacle of ancient glory the Messengers of God have ceased to be made manifest” would indeed be nothing less than sheer blasphemy.

“They differ,” explains Bahá’u’lláh in that same epistle, “only in the intensity of their revelation and the comparative potency of their light.” And this, not by reason of any inherent incapacity of any one of them to reveal in a fuller measure the glory of the Message with which He has been entrusted, but rather because of the immaturity and unpreparedness of the age He lived in to apprehend and absorb the full potentialities latent in that Faith.(Shoghi Effendi: The World Order of Baha'u'llah)